On the return received by the
department, a box had been checked that indicated that taxpayer wanted to
donate any "kicker" refund due to taxpayer to the State School Fund.
In 2007, taxpayer learned that a substantial "kicker" refund was due
for the 2006 year and that taxpayer's refund had been contributed to the State
School Fund. Because taxpayer maintains she did not intend to make that
contribution, taxpayer challenged the actions of the department in paying the
refund to the State School Fund. The department based its actions on a policy
it developed and applied generally. Under that policy, the department would
make refund payments to anyone who used computer software in preparing and
electronically filing a return, but only if the taxpayer in question provided
the department with a copy of the front page of the return showing the school
donation box as not having been checked. Taxpayer submitted a copy of the
return created by her computer, but the return showed the refund donation box
checked.

III. ISSUE

The issue is whether the
action of the department in refusing to make a "kicker" refund
payment to taxpayer was valid.

IV. ANALYSIS

1, 2. As an initial matter, the law
provides, and taxpayer concedes, that she bears the burden of proof in this
proceeding. ORS 305.427. On the question of whether taxpayer, in fact, checked
the donation box on the return form, taxpayer concedes that the box was checked
on the return received by the department. Under ORS 305.792(2)(b), an election
to contribute refunds to the State School Fund makes the election irrevocable.
Accordingly, under ORS 305.792, taxpayer is considered to have made the
election and it may not be revoked. The presence of the checked box on the
filed return must be viewed as conclusive objective evidence that the intent to
make the donation existed. Given that the legislature decided to make the
election irrevocable, the court cannot conclude that the legislature
nonetheless intended that a taxpayer could come in after the filing of the
return to establish a contrary subjective intent.

3. The position in which taxpayer
finds herself is analogous to that of a person who retains an individual tax
return preparer. The only difference is that in this case the "preparer"
is technological and not personal. In either case, if the preparer improperly
indicates an intention to contribute a refund when a taxpayer does not intend
to make the contribution, the preparer may bear legal responsibility for the
loss. That does not, however, alter the irrevocable nature of the election
actually or objectively made. This court has jurisdiction only over challenges
to the tax laws and the actions of the department. ORS 305.410. It does not
have jurisdiction over questions of whether persons or programs employed by
return filers may have or produce liability if the person's or program's
actions or products result in returns that do not reflect the actual intent of
the person filing the return. On the question over which this court has
jurisdiction, the court concludes that the actions of the department were
valid.

V. CONCLUSION

Now, therefore,

IT IS ORDERED that the motion of
taxpayers is denied; and

IT IS FURTHER ORDERED that the motion
of the department is granted. Costs are awarded to neither party.

1.All references to the Oregon Revised Statutes (ORS) are to the 2005 edition.